Wage & Hour Class and Collective Action Review — 2023 - Report - Page 32
the differing level of control that the defendant allegedly asserted over each jobsite. Id.
at *23-25. The court also found unpersuasive amalgamated discovery responses that
provided only an identical boilerplate response from each member of the collective
action as to how the defendant allegedly violated the FLSA. Id. at *27. Noting that the
defendant lacked control over subcontractors’ pay practices, the court found only a
common plan to build houses, not to violate the law. Though the defendant was
responsible for the quality of the work done, conducted inspections, and provided
workers with Samsung tablets to track project assignments, costs, and overall
production, the court found this insufficient to establish that the defendant controlled the
plaintiffs’ work. Id. at *40. The court also credited the defendant’s argument that the
plaintiffs performed a vast array of differing tasks at different job sites for different
subcontractors using different skills. In analyzing the defendant’s affirmative defenses,
the court determined that whether any plaintiff was paid overtime or whether the
defendant was a joint employer with any subcontractor would require individualized
inquiry. Id. at *31-33. Finding it unfair and inappropriate for the plaintiffs’ claims to
proceed as a collective action, the court granted the defendant’s motion for
decertification but denied summary judgment due to the material issue of fact as to
whether the defendant was a joint employer. Id. at *42.
Other employers were able to successfully demonstrate the disparate job
responsibilities amongst collective action members to achieve decertification this past
year. In Write, et al. v. Waste Pro United States, 2022 U.S. Dist. LEXIS 25073 (S.D. Fla.
Jan. 11, 2022), plaintiffs, a group of waste disposal drivers for the defendants, filed a
putative collective action alleging that the defendants violated the FLSA by not paying a
true "day rate" for all hours worked in a given day, not compensating the plaintiff and
other opt-in plaintiffs for pre-shift and post-shift duties, automatically deducting a 30minute lunch break even if the plaintiff and others did not take a lunch break, and
"coupling the day rate with 'other forms of compensation'" including non-discretionary
and discretionary bonuses. Id. at *10-11. The court initially granted conditional
certification of a collective action including all current and former waste disposal drivers
employed by the defendants in Florida within the previous three years who were paid on
a job/day rate basis. After over 650 individuals opted-in to the litigation, and following
discovery, the defendants filed a motion to decertify the collective action on the grounds
that decertification was necessary due to the plaintiffs' disparate factual and
employment settings. The court agreed. It found credible the defendants’ arguments
that the plaintiffs did not hold the same job titles, worked in different locations and under
different decision-makers, worked during different time periods, and did not experience
the same alleged FLSA violations as the methods of compensation, including
entitlement to bonuses, varied. The plaintiffs conceded that the meal break claims
should be decertified, but proposed the creation of three sub-classes for the remaining
claims and requesting that the court allow "mini-trials" on a subclass-by-subclass basis.
The court granted the defendants' motion for decertification because the proposed subclasses and "mini-trials" would not be efficient or fair, and that there were too many
individualized inquiries needed to determine the plaintiffs' FLSA claims and the
defendants' defenses. Id.
DM39529965.1
32
© Duane Morris LLP 2023
Wage & Hour Class And Collective Action Review – 2023
